Ramasamy vs State and Kasammal

T. Sudanthiram, J.—This petition filed by the petitioner herein to quash the proceedings pending against him in C.C. No. 119 of 2003 on the

file of the learned Judicial Magistrate-cum-District Munsif, Usilampatti. The first respondent herein has filed the final report against the

petitioner/accused for the offences under Sections 494 and 506(II) IPC.

The learned Counsel for the petitioner submitted that the second respondent herein filed a private complaint against the petitioner herein and the

complaint was forwarded to the first respondent Police u/s 156(3) Cr.P.C. and after completing the investigation, the first respondent filed final

report for the offence u/s 494 and 506(II) IPC. The learned Counsel for the petitioner further contended that the Police has no power to

investigate the case for the offence u/s 494 IPC and file final report. As per Section 198(1) of Cr.P.C., the complaint u/s 494 IPC may be lodged

only by the aggrieved person and the Police Officer cannot be regarded as an aggrieved person.

Heard the learned Government Advocate (Criminal Side).

The Sub-section (1) of Section 198 reads as follows:

Prosecution for offences against marriage - (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian

Penal Code except upon a complaint made by some person aggrieved by the offence:

Provided that-

(a)... (b)... (c) where the person aggrieved by an offence punishable u/s 494 or Section 495 of the Indian Penal Code is the wife, complaint may

be made on her behalf by her father, mother, brother, sister, son or daughter or by her father''s or mother''s brother or sister with the leave of the

Court, by any other person related to her by blood, marriage or adoption.

The learned Counsel for the petitioner relied on the decisions reported in 1995 (2) L.W. (Cri.) 478 Navaneetham v. Ellappan and Anr. and

2007 (1) Crimes 216 Siddapally Rami Reddy and Ors. v. State of Andhra Pradesh

(i) In 1995 (2) L.W. (Cri.) 478, this Court has observed as follows:

In this case, if the report received from the police officer is the basis for proceeding against he respondents for the offence u/s 494 I.P.C., it will be

illegal because the Court is bound to take cognizance of the said offence only on the complaint of the aggrieved party, and not on the report of the

police officer. Therefore, as rightly contended by the learned Counsel appearing for the petitioner, the Magistrate ought not to have referred this

matter to the police for investigation either u/s 155(2) or 156 Cr.P.C. for investigation and the Magistrate should have proceeded u/s 200 Cr.P.C.

for taking cognizance of the offence alleged by the petitioner.

(ii) In 2007 (1) Crimes 216, the Andhra Pradesh High Court in paragraph 10 & 11 has observed as follows:

In case a private complaint is filed for the offence u/s 494 IPC, in case the Court refers the same u/s 156(3) Cr.P.C., to police for investigation

and thereafter the police files charge sheet after investigation, on the basis of the charge-sheet, if the Court cannot take cognizance of the said,

offence, in view of the prohibition imposed u/s 198 Cr.P.C., it would amount to miscarriage of justice and hardship to the complainant. Perhaps,

the leaned Magistrate ought not to have referred the complaint filed for offence u/s 494 IPC to the police for investigation. As, in the present case,

that stage is already over, the situation can be remedied by directing the trial Court to follow the procedure laid down under Chapter-XIX

Cr.P.C., instead of acting on the basis of the charge-sheet filed by the police, otherwise complete stoppage of prosecution in view of the

prohibition imposed by Section 198 Cr.P.C., would amount to total miscarriage of justice.

Hence, it is directed that the learned Magistrate shall follow the procedure prescribed in Chapter-XIX Cr.P.C., i.e., the procedure to be

followed in warrant cases instituted otherwise than by a police report by recording the sworn statement of the complainant, examining the

witnesses, by completely ignoring the material filed by the police, including the charge-sheet. Obviously, the procedure has to be followed for the

entire case that arises out of the private complaint, which was referred to police u/s 156(3) Cr.P.C., consequent upon which the present calendar

case is registered. The learned Magistrate is directed to follow the above procedure.

In view of the above said decisions, it is clear that filing a final report by the Police u/s 494 IPC is illegal and not maintainable. As far as for the

offence u/s 506(II) IPC is concerned, since the Police has power to investigate the matter and file a final report, the final report filed in C.C. No.

119 of 2003 for the offence u/s 506(II) IPC is maintainable.

Therefore, the Magistrate is directed to proceed the matter on the basis of final report filed for the offence only u/s 506(II) IPC. As far as the

offence u/s 494 IPC is concerned, the proceedings on the basis of final report filed by Police is quashed. The learned Magistrate is directed to

follow the procedure as per Cr.P.C. for warrant cases instituted otherwise than on police report for the offence u/s 494 I.P.C. The cases shall be

tried separately but Judgments shall be delivered on the same day.

With these directions, this petition is closed. Consequently, connected M.P. No. 6246 of 2004 is also closed.